J-A03016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOOMART TOKTOBAEV AND ULUKBEK IN THE SUPERIOR COURT OF
DZHUMALIEV PENNSYLVANIA
Appellees
v.
ALPHA CONTRACTING III, LLC,
KG CONSTRUCTION, ALLEGHENY
POWER, WEST PENN POWER COMPANY,
ALLEGHENY ENERGY, FIRST ENERGY
CORPORATION, TRANZSPORTER, TIE
DOWN ENGINEERING, INC., FAITH
ALLIANCE CHURCH AND THE WESTERN
PENNSYLVANIA DISTRICT OF THE
CHRISTIAN AND MISSIONARY ALLIANCE
APPEAL OF: FIRST ENERGY
CORPORATION, ALLEGHENY ENERGY,
No. 882 EDA 2015
INC., AND WEST PENN POWER COMPANY
Appeal from the Order Entered March 9, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 537 September Term, 2013
HELEN ESBENSHADE, ESQUIRE, IN THE SUPERIOR COURT OF
ADMINISTRATRIX AND PERSONAL PENNSYLVANIA
REPRESENTATIVE OF THE ESTATE OF
ADYLBEK MURATALIEV, DEC.
Appellee
v.
ALPHA CONTRACTING III, LLC, KG
CONSTRUCTION, ALLEGHENY POWER,
ALLEGHENY ENERGY, WEST PENN
POWER COMPANY, FIRST ENERGY
CORPORATION, TRANZSPORTER, TIE
DOWN ENGINEERING, INC., FAITH
J-A03016-16
ALLIANCE CHURCH, AND THE WESTERN
PENNSYLVANIA DISTRICT OF THE
CHRISTIAN MISSIONARY ALLIANCE
APPEAL OF: FIRST ENERGY CORP.,
ALLEGHENY ENERGY, INC., AND WEST No. 894 EDA 2015
PENN POWER COMPANY
Appeal from the Order Entered March 9, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): September Term, 2013, No. 1552
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 18, 2016
Appellants, First Energy Corporation, Allegheny Energy, Inc., and West
Penn Power Company, appeal from the March 9, 2015 order coordinating
these two cases in Philadelphia County pursuant to Pennsylvania Rule of Civil
Procedure 213.1. After careful review, we affirm.
A prior panel of this Court adopted the following facts of this case.
This case arises out of an incident which occurred on
September 19, 2011, wherein [Helen Esbenshade,
Esquire’s] Decedent, Mr. Adylbek Murataliev, was
properly and lawfully engaging in construction and/or
roofing services at the Faith Alliance Church in
Saltsburg, Pennsylvania, and was required to use a
TranzSporter roofing hoist, model number LH4000,
to complete his assigned duties and tasks. On the
time and date aforesaid, Mr. Murataliev and two
other co-workers, Joomart Toktobaev and Ulukbek
Dzhumaliev [(collectively Appellees)], were using the
roofing hoist, when suddenly and without warning,
the hoist moved and made contact with a 12 kV
overhead electrical power line, which was installed
and maintained in very close proximity to the Faith
Alliance Church building. As a result of the
TranzSporter roofing hoist making contact with the
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live 12 kV overhead electrical power line, Mr.
Murataliev was electrocuted and died. [Ms.
Esbenshade, as administratrix and personal
representative of the estate of Mr. Murataliev,
brought a lawsuit in Philadelphia County on
September 13, 2013 under the caption Esbenshade
v. Alpha Contracting III, LLC, et al., September Term
2013, No. 1552 (Esbenshade Case).]
Additionally, Messrs. Toktobaev and Dzhumaliev
were also severely injured in the incident and both
individuals have filed their own lawsuit under the
caption, Toktobaev v. Alpha Contracting III, LLC, et
al., September Term 2013, No. 537 (Philadelphia
County) [(Toktobaev Case)]. [The Toktobaev Case
was filed on September 5, 2013.] Importantly, the
lawsuit filed by Messrs. Toktobaev and Dzhumaliev
involves the exact same Defendants, as well as the
same allegations of negligence.
Esbenshade v. Alpha Contracting III, LLC, et al., 116 A.3d 675 (Pa.
Super. 2014) (unpublished memorandum at 2) (citation omitted).
This case has a complex procedural history. As an overview, the
parties have been contesting the proper venue for these cases in myriad
filings in three cases, upon which three judges have issued rulings. In
addition to the Toktobaev Case and the Esbenshade Case, there was a third
matter involving the parties, a declaratory judgment action filed on
December 20, 2013, by Atlantic Casualty Insurance Company (Atlantic
Casualty Case). In that case, Atlantic Casualty sought a declaratory
judgment that its insurance policy excluded from coverage the claims
against its insured, KG Construction, in the Esbenshade Case and the
Toktobaev Case.
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In the Toktobaev Case, Appellants filed preliminary objections to the
complaint, arguing, in part, that Philadelphia County was not the proper
venue and, alternatively, that the trial court should transfer the case to
Indiana County based on forum non conveniens. On January 17, 2014, The
Honorable Frederica Massiah-Jackson struck the preliminary objections, and
Philadelphia County remained the venue. Trial Court Order, 1/17/14, at 1,
citing, Pa.R.C.P. 1006(d)(1) (providing that any party can petition the trial
court to transfer the action for the convenience of the parties and
witnesses); Pa.R.C.P. at 2179 (listing proper venue for a personal action
against a corporation); Second Amended Complaint, 11/22/13, at ¶ 35
(alleging “[a]ll defendants are jointly and severally liable for the injuries that
Plaintiffs Joomart Toktobaev and Ulukbek Dzhumaliev suffered[]”).
Appellants also filed substantially similar preliminary objections to
Esbenshade’s complaint, which were assigned to a different Philadelphia
County trial judge, the Honorable Mark I. Bernstein, for disposition. Unlike
the preliminary objections in the Toktobaev Case, these were scheduled for
evidentiary hearing and argument on January 24, 2014. Trial Court Order,
11/22/13, at 1.1 The trial court also authorized the parties to conduct
discovery relevant to the question of venue. Id. On January 27, 2014, ten
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1
We note that most of the trial court orders do not contain pagination. For
ease of review, we have assigned each page a corresponding page number
when necessary.
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days after Judge Massiah-Jackson struck the preliminary objections to the
Toktobaev complaint, Judge Bernstein entered an order sustaining
Appellants’ preliminary objections and transferring venue of the Esbenshade
Case to Indiana County based on forum non conveniens. Trial Court Order,
1/27/14, at 1. On January 31, 2014, Esbenshade appealed to this Court.
While that appeal was pending, on February 17, 2014, Esbenshade
filed, in the Atlantic Casualty Case, a motion to consolidate all three cases in
Philadelphia County under Pennsylvania Rule of Civil Procedure 213(a). In
an order dated March 21, 2014, The Honorable Pamela Pryor Dembe denied
the motion to consolidate.
In addition, Appellants filed a motion to transfer the Toktobaev Case to
Indiana County. On July 2, 2014, Judge Bernstein denied that motion,
reasoning that he could not overrule Judge Massiah-Jackson’s previous
ruling on forum non conveniens in the January 17, 2014 order. Appellants
then filed a motion for Judge Bernstein to amend his order to certify it as an
interlocutory order for appeal pursuant to Pennsylvania Rule of Appellate
Procedure 311(b)(2). On August 25, 2014, Judge Bernstein denied that
motion, and Appellants petitioned for review with this Court. On November
7, 2014, this Court denied the petition for review.
Thereafter, on December 2, 2014, this Court affirmed the trial court’s
order sustaining the preliminary objections and transferring the Esbenshade
Case to Indiana County. Esbenshade, supra at 12; (Bowes, J.,
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unpublished concurring memorandum at 2); (Strassburger, J., unpublished
concurring memorandum at 1).2 Specifically, the majority of that panel
concluded that “based upon the location of the accident, its distance from
Philadelphia, and the number of witnesses located 300 miles away from
[Esbenshade’s] chosen forum, the trial court did not abuse its discretion in
transferring [the Esbenshade Case] to Indiana County.” Id. at 2 (Bowes, J.,
concurring). Further, the concurring memorandum authored by Judge
Strassburger noted “that this case, along with those of Toktobaev and
Dzhumaliev, cries out for coordination.” Id. at 1 (Strassburger, J.,
concurring).
On January 23, 2015, Esbenshade filed, in the Esbenshade Case, a
motion to coordinate all three cases in Philadelphia County. Esbenshade’s
Motion to Coordinate, 1/23/15, at ¶ 18, 22-25. It was assigned to Judge
Bernstein. Appellants filed a brief in opposition to coordination. Atlantic
Casualty filed an answer to the motion to coordinate. Toktobaev and
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2
The Honorable Paula Ott’s lead memorandum concluded that Esbenshade
had waived the issues relating to forum non conveniens. Esbenshade,
supra at 8. The Honorable Mary Jane Bowes’ concurring memorandum
found that Esbenshade did not waive the issues relating to forum non
conveniens and affirmed the trial court on the merits. Esbenshade, supra
at 2 (Bowes, J., concurring). The Honorable Gene Strassburger joined Judge
Bowes’ concurring memorandum. Id. at 1 (Strassburger, J., concurring).
Therefore, the prior panel affirmed the trial court’s decision to transfer venue
based on forum non conveniens on the merits.
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Dzhumaliev filed a response in support of the motion to coordinate,
requesting that the trial court coordinate the cases in Philadelphia County.
On February 13, 2015, in the Atlantic Casualty Case, Judge Dembe
entered declaratory judgment in favor of Atlantic Casualty, finding it had no
duty to defend or indemnify its insured in this case and the Toktobaev Case.
That order was not appealed.
On March 9, 2015, Judge Bernstein entered an order coordinating the
Esbenshade Case and the Toktobaev Case in Philadelphia County.3
Appellants filed a timely notice of appeal with this Court.4
On appeal, Appellants present the following issues for our review.
1. Whether the [t]rial [c]ourt erroneously
coordinated the two injury cases in Philadelphia
County (rather than Indiana County) under the
mistaken belief that Rule 213.1 of the
Pennsylvania Rules of Civil Procedure required the
cases to be coordinated in Philadelphia County,
the venue in which the first case was filed?
2. Whether the Superior Court’s ruling that it would
be oppressive to try the Estate’s action in
Philadelphia County precluded the [t]rial [c]ourt
from invoking the coordination rule on remand as
a vehicle to transfer venue from Indiana County
back to Philadelphia County?
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3
We note the order was dated February 25, 2015 and docketed on March 9,
2015.
4
The trial court did not order Appellants to file a Pennsylvania Rule of
Appellate Procedure 1925(b) concise statement of errors complained of on
appeal. The trial court filed its opinion on May 27, 2015.
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3. The [t]rial [c]ourt ruled that it would be
oppressive—and not merely inconvenient—to try
the [Esbenshade] action in Philadelphia County.
In selecting the venue in which to coordinate the
[Esbenshade] action with the [Toktobaev] action
arising out of the same accident, did the [t]rial
[c]ourt err by selecting the oppressive venue
(Philadelphia County) rather than the non-
oppressive venue (Indiana County)?
Appellants’ Brief at 3.
Our standard of review for an order of coordination is whether the trial
court abused its discretion. Pa. Mfrs.’ Ass’n Ins. Co. v. Pa. State Univ.,
63 A.3d 792, 794 (Pa. Super. 2013). We have explained that the following
principles guide our review.
Where the record provides a sufficient basis to justify
the order of coordination, no abuse of discretion
exists. Whether we would have reached the same
conclusion is immaterial. In exercising its discretion,
the trial court should receive guidance not only from
the enumerated [Pennsylvania Rule of Civil
Procedure 213.1(c)] criteria … but also from the
explanatory comment to Rule 213.1(c), which
explains that the ultimate determination that the
court must make is whether coordination is “a fair
and efficient method of adjudicating the
controversy.”
Washington v. FedEx Ground Package Sys., 995 A.2d 1271, 1277 (Pa.
Super. 2010) (citations omitted).
Further, Rule 213.1 provides, in part, as follows.
Rule 213.1 Coordination of Actions in Different
Counties
(a) In actions pending in different counties which
involve a common question of law or fact or which
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arise from the same transaction or occurrence, any
party, with notice to all other parties, may file a
motion requesting the court in which a complaint
was first filed to order coordination of the actions.
Any party may file an answer to the motion and the
court may hold a hearing.
…
(c) In determining whether to order coordination
and which location is appropriate for the coordinated
proceedings, the court shall consider, among other
matters:
(1) whether the common question of fact or
law is predominating and significant to the
litigation;
(2) the convenience of the parties, witnesses
and counsel;
(3) whether coordination will result in
unreasonable delay or expense to a party or
otherwise prejudice a party in an action which
would be subject to coordination;
(4) the efficient utilization of judicial facilities
and personnel and the just and efficient
conduct of the actions;
(5) the disadvantages of duplicative and
inconsistent rulings, orders or judgments;
(6) the likelihood of settlement of the actions
without further litigation should coordination
be denied.
(d) If the court orders that actions shall be
coordinated, it may
(1) stay any or all of the proceedings in any
action subject to the order, or
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(2) transfer any or all further proceedings in
the actions to the court or courts in which any
of the actions is pending, or
(3) make any other appropriate order.
…
Pa.R.C.P. 213.1(a), (c)-(d).
In their first issue, Appellants contend that the trial court erred in
ordering the cases to be coordinated in Philadelphia County. Appellants’
Brief at 25. Appellants argue, “Judge Bernstein did not consider whether
Indiana County would be a more appropriate venue …. Judge Bernstein did
not … determine that Philadelphia County was a more appropriate venue
than Indiana County in which to resolve the coordinated cases.” Id. at 25-
26. Appellees respond that “Appellants failed to properly raise this issue at
the trial court.” Appellees’ Brief at 5.
The text of Rule 213.1(c) reveals that a coordination analysis has two
parts. Pa.R.C.P. 213.1(c). First, the trial court must determine whether to
coordinate the cases. Id. Second, if coordination is appropriate, the trial
court must then decide which county should conduct the proceedings. Id.
In this case, Appellants contend that the trial court erred in ordering
coordination without conducting the second step of the Rule 213.1 analysis,
i.e., which county should hear the cases. Appellants’ Brief at 25-26.
However, Appellants did not present the trial court with Indiana County as
an option. Instead, in their brief in opposition to the motion to coordinate,
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they expressly requested that the trial court not consider coordinating the
cases in Indiana County as follows.
[Appellants] do not necessarily dispute that the
Toktobaev [Case] and the [Esbenshade Case]
involve common issues of law and fact such that
coordination in Indiana County—where it would not
be oppressive to resolve the cases—could be
appropriate. These entities reserve the right to seek
coordination of those two cases in Indiana County in
the future. However, that more limited issue is
not implicated in the Motion to Coordinate.
Appellants’ Brief in Opposition to Esbenshade’s Motion to Coordinate,
2/12/15, at 5 n.1 (emphasis added). Appellants then focused their
argument on the reasons that the cases should not be coordinated. Id. at
6-12.
Now, on appeal, Appellants, for the first time, advocate Indiana
County as the location for the coordinated cases and contend that the trial
court should have considered whether to coordinate the cases in Philadelphia
County or Indiana County. Appellants’ Brief at 25-26. Because Appellants
did not present this issue to the trial court, it is not preserved for our review.
See Pa.R.A.P. 302(a) (declaring “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal[]”). Appellants
made the strategic decision to focus on the first part of the coordination
analysis, whether coordination was appropriate, believing that the choice of
which county to coordinate in was not before the trial court in the motion to
coordinate. Appellants’ Brief in Opposition to Esbenshade’s Motion to
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Coordinate, 2/12/15, at 5 n.1. Appellants misapprehended Rule 213.1(c),
but they cannot revise and reconstruct their strategy in this Court. See
Pa.R.A.P. 302(a). Therefore, we conclude that Appellants have waived this
issue by not raising it in the trial court. See id.
We address Appellants’ two remaining issues together. Therein,
Appellants contend that the trial court previously found that Philadelphia
County was an “oppressive” venue for the Esbenshade Case, and the
Superior Court affirmed that decision. Appellants’ Brief at 30. Appellants
assert that the trial court was not permitted to coordinate the Esbenshade
Case in Philadelphia County because that disturbs this Court’s decision to
affirm venue in Indiana County based on its forum non conveniens analysis.
Id. Appellants also argue that it circumvents numerous trial court rulings on
venue. Id. at 34.
This Court has noted that the issue of forum non conveniens5 is
different from the Rule 213.1 coordination analysis. “We reiterate that
convenience is only one factor, and not the overriding factor, in such
determinations.” Pa. Mfrs.’, supra at 795. “Ultimately, as we explained in
Washington, the trial court’s primary task is not to balance the relative
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5
We note that Pennsylvania Rule of Civil Procedure 1006(d)(1) is the basis
of forum non conveniens. It provides that “[f]or the convenience of the
parties and witnesses the court upon petition of any party may transfer an
action to the appropriate court of any other county where the action could
originally have been brought.” Pa.R.C.P. 1006(d)(1).
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convenience of the parties, but to decide if the proposed coordination would
provide ‘a fair and efficient method of adjudicating the controversy.’” Id. at
796, quoting Washington, supra at 1277.
Here, Judge Bernstein decided the coordination motion. He
explained that the cases should be coordinated because they are “clearly
related” because they “derive from the same operative facts.” Trial Court
Opinion, 5/27/15, at 3. He then chose to coordinate them in Philadelphia
County, where the first-filed case remained. Id. He did so even though he
had determined that Philadelphia County was not a convenient forum for
Appellants. Our prior panel decision and the other trial court orders were
not controlling on the question of whether the coordination was “a fair and
efficient method” to resolve the cases. Pa. Mfrs’, supra. Rule 213.1
permitted the trial court to coordinate the cases in Philadelphia County, even
though it was not convenient for some of the parties because convenience is
not dispositive. See id.
Further, the record supports the decision to coordinate. There is no
question that the cases involved common issues of fact and law. See
Pa.R.C.P. 213.1(c)(1). Appellants presented no evidence or argument that
coordination would result in prejudice. Id. at 213.1(c)(3). Coordination
would be a more efficient use of judicial resources because two courts of
common pleas deciding the cases would result in a large duplication of
efforts, and possibly result in inconsistent rulings, orders, or judgment. Id.
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at 213.1(c)(4)-(5). These factors weighed heavily in favor of coordination
and the trial court was permitted to conclude they outweighed the
convenience of the parties, witnesses, and counsel. Id. at 213.1(c).
Moreover, even in the event the issue was not waived, the trial court did not
abuse its discretion in selecting Philadelphia County as the location for the
coordinated proceedings. Therefore, we will not disturb the trial court’s
decision. See Washington, supra.
For the foregoing reasons, we find Appellants’ issues waived or without
merit. Accordingly, we affirm the trial court’s March 9, 2015 order
coordinating these cases in Philadelphia County.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2016
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